Iowa Court Denies Adverse Possession Claim

March 17, 2016 | Kristine A. Tidgren

Ambiguous wills often lead to unfortunate family disputes.  And such a dispute came before the Iowa Court of Appeals recently.

Although the disagreement arose because of a seemingly ambiguous section in their mother’s will, the fight between a brother and sister came before the court as a claim for adverse possession.To understand this dispute, it is helpful to see the portion of the mother’s will that fueled it (the relevant portions have been bolded for effect):


1. I give all of my pasture and tillable farm land to Gregory S. Koether and Kathleen K. Koether.

2. I give all of my forest/timber land to be divided equally between Gwendolyn J. Elliott and Gregory S. Koether.

3. I give Gregory S. Koether the rental house legally described as follows: Southwest Quarter of the Northeast Quarter in Section 26, Township 95 North of Range 4, Clayton County, Iowa. I give Gwendolyn Elliott the family house legally described as follows: Lot Seventeen (17), Block Two (2), in the Village of Giard, Clayton County Iowa.

This case involved Gregory, the brother, and Gwendolyn, the sister. The brother had been farming his parents’ land since before his father died in 2000 and his mother died in 2004. The brother and sister were co-executors of their mother’s will. In 2006, they executed a court officer's deed conveying Lot 17 to the sister in accordance with Article 3, Section 3 of the will. The problem was that Lot 17, which was the situs of the family house, also included outbuildings, pasture and tillable farmland that the brother had been using in his farming operation for many years. The sister did not realize that Lot 17 contained all of this additional property until she had the land surveyed in 2012. After the survey, she evicted her brother.

The brother filed his action to quiet title to Lot 17, excluding the house (which he conceded belonged to his sister). He alleged that he was entitled to the property under an adverse possession theory. The district court agreed and entered judgment in the brother’s favor.

On appeal, however, the Iowa Court of Appeals ruled that the brother failed to prove “hostile, actual, open, exclusive and continuous possession, under claim of right or color of title for at least ten years.” The problem was that only eight years passed between the time the mother died and the sister evicted the brother. The court found that prior to that time, the brother had occupied the property with the consent of his mother (and father during his lifetime). The court reversed the district court’s ruling and directed the district court to deny and dismiss the brother’s claim.

While the sister owns the property, the brother likely failed to make his better argument at trial. Buried in the footnote of the appeal was mention of the fact that the brother was also claiming title to the land under equitable principles. He pointed out (apparently for the first time on appeal) that the will gave "all pasture and tillable farm land” to him in one provision and “the family house legally described as” Lot 17 to the sister in a separate provision. The brother urged that the intent of the mother was for him to have all tillable farmland and pasture, including that which was legally part of Lot 17. He also contended that it was the intent of his mother that his sister have only the house. The court ruled that the brother failed to preserve that claim for review since he did not raise it with the trial court.

The case is Koether v. Elliott, No. 15-0172 (Iowa Ct. App. March 9, 2016).